The Legislative Process: Crafting Law in the Political Arena

When you switch on the news and hear about a new law being passed, have you ever wondered how that law came into existence? Lawmaking isn’t a random process-it’s a carefully structured journey that transforms ideas into legally binding rules that govern society. In India, this process involves multiple institutions, layers of authority, and constitutional safeguards that ensure every law serves the public interest while respecting fundamental rights.

Who has the power to make law? 🔗

The power to create laws in India rests with the sovereign authority of the state, which is exercised through the legislature. Parliament and state legislatures serve as the primary lawmaking bodies, with Parliament holding authority over national matters and state legislatures governing state-specific issues. This division of powers is particularly important in India’s federal structure, where both the Union and the states have distinct yet interconnected roles.

The Indian Parliament consists of two Houses-the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). While the Lok Sabha is directly elected by citizens, the Rajya Sabha comprises members elected by state legislative assemblies. Together, they form the supreme legislature with the power to enact laws for the entire country or specific regions.

Federal vs. unitary systems 🔗

India operates as a federation with a unique balance between central and state powers. Unlike a purely federal system where states enjoy complete autonomy, or a unitary system where all power is centralized, India combines both features. The Constitution divides legislative subjects into three lists: the Union List (subjects under Parliament’s exclusive jurisdiction), the State List (subjects under state legislatures), and the Concurrent List (subjects where both can legislate, though Union law prevails in case of conflict).

This structure means that a state legislature can pass laws on education or agriculture, while Parliament handles defense and foreign affairs. When conflicts arise on concurrent subjects, Union law takes precedence, reinforcing the Constitution’s essentially unitary spirit despite its federal structure.

How does a bill become law? 🔗

The journey from idea to enforceable law follows a systematic process designed to ensure thorough examination and democratic participation. A bill must pass through both Houses of Parliament and receive Presidential assent before it becomes law.

The three readings 🔗

Each bill undergoes three readings in both the Lok Sabha and Rajya Sabha. During the first reading, the bill is introduced and published in the official gazette without discussion. The second reading involves detailed scrutiny-members debate the bill’s principles, examine it clause by clause, and may refer it to a Select Committee or Standing Committee for expert review. The third reading allows final debate on the bill as a whole, followed by voting.

Once a bill passes one House, it moves to the other House, where the same three-stage process repeats. If both Houses agree on the bill’s contents, it proceeds to the President. However, if disagreements arise, a joint sitting of both Houses may be convened to resolve the deadlock-though this is rare and has been used only three times since 1950.

Special procedures for money bills 🔗

Not all bills follow the same path. Money bills, which deal exclusively with taxation and government expenditure, have a special status. They can only be introduced in the Lok Sabha with the President’s prior recommendation, and the Rajya Sabha has limited powers-it must return money bills within 14 days with or without recommendations, which the Lok Sabha may accept or reject. This ensures financial matters remain primarily under the control of the directly elected house.

The Constitution as the supreme law 🔗

While Parliament and state legislatures make laws, they cannot create just any law. The Constitution stands above all other laws as the supreme legal authority. Article 13 of the Constitution explicitly states that any law inconsistent with fundamental rights shall be void to the extent of such inconsistency.

This supremacy manifests through the doctrine of judicial review. If Parliament passes a law that violates citizens’ fundamental rights-say, a law restricting freedom of speech beyond reasonable limits-the Supreme Court can strike it down. The landmark Kesavananda Bharati case of 1973 established that even constitutional amendments cannot alter the Constitution’s “basic structure,” which includes fundamental rights, secularism, democracy, and judicial independence.

When laws conflict with the Constitution 🔗

Article 13 divides laws into two categories: those existing before the Constitution came into force in 1950, and those made afterward. Pre-constitutional laws that conflict with fundamental rights become unenforceable from 1950 onwards, though they’re not void from their inception. Post-constitutional laws that violate fundamental rights are void from the very beginning (void ab initio).

This constitutional supremacy ensures that legislative power, while vast, is not absolute. The Constitution creates boundaries within which lawmaking must operate, protecting citizens’ rights from potential legislative overreach.

The role of the people through customary law 🔗

Lawmaking isn’t solely the domain of formal legislatures. Customary laws-unwritten rules that emerge from long-standing practices within communities-also hold legal recognition in India. These customs govern various aspects of life, particularly in tribal areas and matters of personal law like marriage and inheritance.

For a custom to gain legal force, it must satisfy certain conditions: it must be ancient, continuous, reasonable, and not contrary to statutory law or public policy. The Indian Evidence Act, through Section 13, provides the framework for proving customary laws in court.

Constitutional protection for customs 🔗

The Constitution recognizes customary law under Article 13, treating it as equivalent to other forms of law. However, this recognition comes with important limitations. Customs that violate fundamental rights or constitutional morality can be struck down by courts. The Sabarimala temple case demonstrates this-the Supreme Court invalidated the customary practice of barring women of menstruating age from entering the temple, prioritizing gender equality over tradition.

The Fifth and Sixth Schedules of the Constitution provide special protections for tribal customs, allowing tribal communities considerable autonomy in governing their affairs according to traditional practices, provided these don’t conflict with broader constitutional values.

Judicial precedents as law creators 🔗

While judges aren’t legislators in the traditional sense, they play a crucial role in lawmaking through judicial precedents. Article 141 of the Constitution declares that law declared by the Supreme Court is binding on all courts in India, establishing the doctrine of precedent (stare decisis).

How precedents work 🔗

When courts interpret statutes or the Constitution, they establish legal principles that future judges must follow. The binding part of a judgment is called the ratio decidendi-the reasoning essential to the decision. Other observations made by judges (obiter dicta) aren’t binding but may have persuasive value.

India’s hierarchical court system ensures consistency: Supreme Court decisions bind all lower courts, High Court decisions bind subordinate courts within their jurisdiction, and subordinate courts must follow decisions from courts above them. This creates uniformity in legal interpretation across the country.

When judges fill legislative gaps 🔗

Sometimes, existing laws don’t address emerging social issues. In such cases, courts step in to fill the void. The Vishakha Guidelines for preventing sexual harassment at workplaces emerged from a Supreme Court judgment-not from Parliament. The court recognized that the absence of legislation left working women vulnerable and created binding guidelines that later formed the basis for the Sexual Harassment of Women at Workplace Act, 2013.

Similarly, when the Constitution was silent on whether the right to privacy was a fundamental right, the Supreme Court in the Puttaswamy judgment declared it to be an integral part of the right to life and personal liberty, effectively creating new law through judicial interpretation.

Checks and balances in lawmaking 🔗

The legislative process contains multiple safeguards to prevent hasty or unjust laws. Parliamentary committees examine bills in detail, often calling experts to testify. The 24 Departmentally Related Standing Committees scrutinize bills related to their subject areas, though their recommendations aren’t binding on Parliament.

The President’s role provides another check. While the President must normally act on the advice of the Council of Ministers, they can return ordinary bills for reconsideration (though not money bills). If Parliament passes the bill again, the President must give assent. This “pocket veto” has been used sparingly-only once since independence.

The most significant check comes from judicial review. Even after a bill becomes law, courts can examine its constitutional validity. This power ensures that no legislature, however powerful, can override the Constitution’s fundamental protections.

When conditions must be met for laws to be effective 🔗

A law doesn’t automatically become effective the moment it’s passed. After receiving Presidential assent, the government must notify when the law comes into force. Some laws become effective immediately upon assent, while others specify a future commencement date or come into force through official notification.

Constitutional amendment bills require even stricter conditions. Besides needing a special majority (more than half the total membership and two-thirds of members present and voting) in both Houses, certain amendments affecting federal structure or fundamental rights must also be ratified by at least half the state legislatures before becoming effective.

What do you think? Does India’s multi-layered lawmaking process-with its legislative procedures, constitutional safeguards, customary recognition, and judicial oversight-strike the right balance between democratic legitimacy and protection of rights? How can the system better incorporate diverse voices while maintaining efficiency in addressing urgent social needs?

References

1. https://sansad.in/ls/legislation/introduction
2. https://en.wikipedia.org/wiki/Parliament_of_India
3. https://en.wikipedia.org/wiki/Constitution_of_India
4. https://vajiramandravi.com/upsc-exam/process-of-law-making/
5. https://indiankanoon.org/doc/134715/
6. https://testbook.com/constitutional-articles/article-13-of-indian-constitution
7. https://lawbhoomi.com/customary-law-in-india/
8. https://www.legalserviceindia.com/legal/article-10138-customary-laws-and-its-constitutional-validity.html
9. https://www.thelawadvice.com/articles/understanding-customary-laws-in-india
10. https://jpassociates.co.in/doctrine-of-precedent/
11. https://lawnotes.co/the-doctrine-of-precedent-in-indian-jurisprudence/
12. https://en.wikipedia.org/wiki/Law_of_India
13. https://www.nextias.com/blog/legislative-procedure/